March 6, 1981
It is improper for a judge to serve on the board of a non-profit hospital that will be regularly engaged in adversary proceedings in any court.
It is permissible for a judge to refer drinking drivers to the alcohol educational program of a charitable organization of which the judge is a member of the Board and his/her spouse the Director when the judge has not been influenced by these relationships, and has selected the program best suited to the drivers' needs and the public interest.
References: Michigan Code of Ethics, Canons 2 and 5.
You have asked two questions:
May you, as a Circuit Court judge, properly refer drinking drivers to the Highway Safety Education Program of the National Council on Alcoholism-Greater Detroit Area (a charitable agency), of which you are a member of the Board of Directors, and your wife is Executive Director.
May you continue to serve as a member of the Board of Trustees of Kirwood General Hospital, a non-profit community hospital, in view of the fact which you acknowledge that hospitals in general are quite often parties to Circuit Court litigation.
To respond to your second question first, Canon 5(B) of the Michigan Code of Judicial Ethics states in part that, "A judge may serve as an officer, director, trustee, or non-legal advisor of a bona fide educational, religious, charitable, fraternal, or civic organization, subject to the [limitation that] . . . A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court."
The limitation in Canon 5(B) regarding organizations regularly engaged in adversary proceedings appears applicable today to a hospital. The rationale would seem to be that even if you were to disqualify yourself from any litigation involving the hospital, " 'those not friendly to the hospital could well have a lingering suspicion that [you have] . . . influenced the judge assigned to hear the case.' " (Quotation from judge's request for opinion in ABA Informal Decision C-706 (1963), which however reaches a result under the ABA Code contrary to that mandated by the language of the Michigan Code.)
Regarding your own association, and your wife's employment, with the NCA-GDA, Canon 2(C) states that, "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgement." As you indicate "no doubt at all about [your] . . . complete impartiality" in referring drinking drivers to the educational program best suited to serve their needs and the public interest, the referral of drivers to the Highway Safety Education Program would not appear to conflict with Canon 2(C). Indeed, the number of available quality programs may not be sufficient to permit a wide range of choice on your part.
Your wife's employment with the NCA-GDA could conceivably be said to make referrals by you to its education program an "appearance of impropriety," which should be avoided (Canon 2(A)): in that both the general success of the education program in terms of referrals and her relationship with you might have the effect of enhancing her position. However, you are only one of many Traffic Court and Circuit Court judges who could refer drivers to the program. In light of contemporary social facts and understandings regarding spousal employment and independence, it would seem inappropriate in the absence of a relatively specific prohibition in the Code (cf. Canon 5(C)(4) on gifts, etc., to members of a judge's family), for the Committee to simply assume that an appearance of impropriety would in fact arise from quite speculative and intangible benefits to your wife.
Although this opinion has been prepared by the undersigned, it has been circulated to other Committee members for their concurrence prior to its release to you.